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M a y 201 6 OPI N IO N / ANA L YSIS 5

COMMUNIQUE ON THE OUTCOME FROM THE 2ND ALTERNATIVE MINING INDABA

ollowing the 2nd Alternative Mining Indaba themed “Making Laws Work For the People: Effective Legal and Regulatory Frameworks are Indispensable” held on February 2nd – 3rd, 2016 under the umbrella body of Natural Resources Justice Network (NRJN) with support from Norwegian Church Aid, ActionAid Malawi and Oxfam, together as the Natural Resources

Justice Network we have drawn together in this Communique the most important issues that came out during this Indaba.

Community members, civil society organizations (CSOs), government officials,

between the government and investors, and the awarding of contracts to potential investors. This has resulted in the community and citizens losing faith in the government’s management of the mining sector and the demand from community members for more inclusive and participatory processes.

It is against this background that civil society and faith-based organizations have launched an advocacy campaign aimed at protecting the human rights of the communities where mining is taking place and at promoting accountability and transparency in the mining sector to ensure that the public benefits from mining in Malawi.

Group photo of participants at the 2nd Alternative Mining Indaba 2016 taken at Bingu International Conference Centre in Lilongwe

Norwegian Church Aid Country Representative Stain Villumustad having a chat with PS for Ministry of Natural Resources, Energy and Mining Keister Kaphaizi

academia, faith based o rg a n i z a t i o n s , f a i t h leaders, and traditional l e a d e r s g a t h e r e d i n Lilongwe to discuss and share experiences on how mining, oil and gas c a n d r i v e M a l a w i ’s s o c i o - e c o n o m i c development and what laws and regulations exist or are needed to make this a reality. The m i n i n g i n d a b a w a s aimed at providing a platform for communities and organizations that represent them to take a s t a n d o n e n s u r i n g Malawi’s mineral re-

2ndALTERNATIVE MININGINDABA 2016 RESOLUTIONSThe Mines and Minerals Bill

Mining activity in Malawi is guided primarily by the Mines and Minerals Act of 1981, the Petroleum (Exploration and Production) Act of 1983, the Explosives Act of 1968, and the Environmental Management Act of 1996.

Realizing that our Mines and Minerals Act is outdated and does not stand the current context where mining has evolved, civil society organizations launched a campaign to ask government to revise the Mines and Minerals Act. The government of Malawi deserves credit for taking steps towards reviewing the Act and presenting a revised draft bill. However, the Alternative Mining Indaba observed that involvement of communities in areas where there is mineral exploration or mining activities is very significant. The Indaba agreed that theMines and Minerals Bill needs to be strengthened to include community n e e d s . T h e Bill should respond to community demands by including clauses that are honoring and recognizing

sources benefit the people and to strengthen relationships between various players in the mining sector while facilitating information sharing to reach the nation on pressing issues facing the management of our natural resources.

Ma

lawi’s mining sector an

overviewMalawi’s mining sector though considered new dates back to the late 1980s when

mining activities took place in few areas around the country. Had the industry been well regulated with legal frameworks promoting transparency and accountability, Malawi would by now have realized greater economic growth and community empowerment from this sector. Unfortunately to date there is a lot of secrecy around the handling of mining agreements

the need for communitiesto negotiate development contracts and establishment o f m i n e s a n d m i n e r a l s b o a r d s a s m e d i a t i o n mechanisms with sufficient m a n d a t e s a n d p o w e r s to represent community needs and concerns.

cont. on page 8

Traditional leaders also formed part of the high-level delegation at the event. Standing is Paramount Chief Kyungu of Karonga and Chitipa making a contribution

A

6 N EWS AN D ANA L YSIS M a y 201 6

CEPA reports subin Mining Govern

Participants at a mining policy advocacy training workshop that CEPA conducted in Phalombe.

By Marcel Chimwalalocal civil society organization, Centre for Environmental Policy and Advocacy (CEPA), says it is coming up with encouraging results in its “Strengthening Mining Governance in Malawi” project which it is

implementing with funding from the Tilitonse Fund.Programme Officer, Cynthia Simkonda, explains that

since inception, CEPA has made progress towards strengthening policy and institutional framework for

regulating the mining sector. In particular, CEPA has worked with Natural Resources Justice Network (NRJN), an umbrella network of CSOs working in the mining sector, to influence the review of policy and legal framework for mining in Malawi. “Through research and analysis, recommendations have been made to the current draft Mines and Minerals Bill 2015 (MMB) to ensure that the Bill provides for an effective legislative framework for stakeholder engagement in mining activities.”

The project whose overall goal is “making governance in the mining sector more inclusive and accountable” is

being implemented at national level, with three districts (Phalombe, Karonga and Kasungu) selected to generate evidence for policy advocacy. CEPA collaborates with Action Aid International Malawi to facilitate policy dialogue sessions in the impact districts. In this regard, CEPA has facilitated the training of three local structures in policy advocacy to equip the local structures with skills to advocate, lobby and influence policy and decision making processes in the mining sector. The structures namely Ufulu Wathu Community Based Organization (CBO), Tipone Development CBO (TIDECO) and Uraha Foundation of

M a y 201 6 N EWS AN D ANA L YSIS 7

stantial progressance Project

Chanza: CEPA Executive Director

policy development and implementation in the mining sector. The report can be accessed on https://miningin- m a l a w i . f i l e s . w o r d p r e s s . c o m / 2 0 1 5 / 0 9 / 2 0 1 5 - 0 8 - implementation-of-mining-policy-in-malawi.pdf. The research findings were presented to the stakeholders in the mining Sector at Crossroads Hotel in Lilongwe. Among other key findings, the survey cited the need for robust infrastructure in terms of data, roads and energy supply for the development of the mining sector.

The study, which CEPA conducted, using the services of a private consulting firm Geomine Services, pointed out the existing gaps in energy and transportation sectors, as some of the shortfalls that are stifling growth of the sector. Welton Phalira of Geomine Services, who presented the study findings, also noted that participation of local M a l a w i a n s i n m e d i u m t o l a r g e s c a l e m i n i n g investments was still low as there was no effective vehicle (implementation strategy) for their engagement and support. The report recommended the need to work towards developing requisite technical and financial capacity amongst Malawians in order for them to

competitively venture into mining b u s i n e s s . I t a l s o c a l l e d f o r i n i t i a t i v e s t o w a r d s a c q u i r i n g e x p e r t i s e a s r e g a r d s mineral development and research.

B u t o n p o s i t i v e note, the report noted of the increased interest and engagement of the private sector in mineral development and increased discourse on mineral development. It was also observed t h a t t h e r e h a s b e e n a c t i v e participation of the civil society, a development which will enhance transparency, accountability and good governance of the sector. This far, government and CEPA have b e e n a b l e t o c o n d u c t j o i n t inspections in the northern region

Stakeholders listening to a presentation of CEPA-commissioned study on miningpolicy implementation

mining in their localities through the Reflection Action

o f M a l a w i t o a s s e s s m i n i n g companies’ compliance with the legislations.

Phalombe, Mzimba and Karonga respectively have since been able to use their knowledge to speak for themselves and even represent the community on issues regarding

Cycles. The Reflection Action Cycles have so far been able to interact with media to report on different mining experiences and issues in their vicinities through the print media and Nyengo ndi Chilengedwe radio programme on MBC radio 1.

Recognizing that the issuance of licenses and mining activities in Malawi progressed alongside the review of the mining legislation, CEPA undertook an assessment of mining policy implementation to understand the extent to which ongoing mining activities comply with the existing regulatory framework. Simkonda says the assessment report has helped in analysing the extent to which mining activities comply with the current Mines and Minerals Policy 2013 and the Mines and Minerals Act of 1981. The report was also envisaged to promote effective

CEPA’s Executive Director William Chadza com-mends government for the direction it has taken towards regulating the mining sector for the mutual benefit of both the investors and local people.

“Let me also applaud government for initiating measures that would curb the exploitation of Artisanal and Small Scale Miners (ASMs) by unscrupulous middlemen w h o a l w a y s t a k e a d v a n t a g e o f t h e c u r r e n t l e g a l framework,” he says.

Chadza says the initiative that government has rolled out of sponsoring regional trips for ASMs for experience sharing and learning is quite encouraging, but he further urges government to spearhead formation of cooperatives for ASMs, so that they speak with one voice and deal as a block to avoid being duped by middlemen

8 A N A L YSIS M a y 201 6

...from page 5Access to Information Bill

The bill is crucial in ensuring that transparency and accountability is achieved in mining sector. The secrecy in mining sector has resulted in speculations and disappointments by the public on how government has handled investors and

A cross-section of attendees were seen busy taking notes as the deliberations got interesting, with various contributors making a diverse of recommendations and suggestions

consequently their contracts. Lack of information has led to mistrust by the public citizens towards government and mining investors. It is a human right for citizens to have access to information about issues that directly impact their lives, including issues related to mining in their communities.

The Mining Indaba observed that the Mines and Minerals Act should be enacted together with The Access to Information Bill to ensure its effective implementation. The draft mines and minerals act contains some requirements that can only be done if information is released and made public by duty bearers. Therefore, effectiveness of The Mines and Minerals Bill is dependent on the Access to Information Bill. Otherwise it will be like assembling a vehicle and then denying it the engine to move the wheels. Moreover, effective implementation of EITI will depend on the right to access information and basic information flow.

Domestication of Free Prior and Informed Consultation

Free, prior, and informed consent (FPIC) refers to the right of local communities, particularly indigenous peoples, to participate in decision making about issues affecting them. This has not been the case with projects in the past with communities not being given the right to give consent to projects and activities that displace them or their livelihoods and traditions. The Indaba observed that the community is minimally considered as a vital stakeholder in mining and most life changing decisions are made on their behalf by duty bearers with inadequate feedback mechanisms between citizens and duty bearers. This means that the rights of communities are not sufficiently protected from infringement of their right by company and government actions.

It is against this background that the Indaba agreed that free, prior and informed consent should be recognized by government and enforced as well in the Mines and Minerals Bill and other relevant pieces of legislation.

Local mining sector captains, left is Burton Kachinjika of Mkango Resources, 3rd left Grain Malunga from Chamber of Mines; right Chimwemwe Chikusa of Rakgas, posing at the Indaba with Elvyn Nkhonjera Chawinga (2nd left), a human rights activict at Oxfam responsible for extractives office

Utilization of revenue from mining sector

Funds collected by government from mining sector are transferred to Government Account Number 1 for general distribution within the National Budget. While communities are bearing the negative consequences of the mining activities, there is no mechanism to channel portions of the revenue back to them as compensation for these inconveniences. Moreover, no significant earmarked development in infrastructure or social services have clearly emanated from mining. The Mining Indaba concluded that part of Government revenue from mining should be entrusted a trust fund with

transparent management procedures, and governed in ways that community interests are acknowledged.

ON PUBLICATION OF AGREEMENTS THAT GOVERNMENT ENTERS WITH INVESTORS AND INVESTORS INFORMATION AND REVENUE COLLECTED

To ensure that transparency is achieved, the government should make public agreements made with investors. This will inform the general public on progress being made in mining sector and enable citizens to hold both government and companies accountable for the terms of agreements. The general public deserves to know the investors involved in extracting their natural minerals. Furthermore reporting in line with licences should be encouraged as well to improve enforcement of licence conditions for the benefit and protection of communities and the environment. Government and companies are urged to comply with the Extractive Industries Transparency Initiative so that there is clear information on finances collected from natural resources extracted in Malawi.

PETROLEUM POLICYGovernment has issued exploration licences to all six petroleum exploration blocks

covering all of Lake Malawi and part of Malawi’s land including the Shire River Basin. However, Malawi needs to develop a Petroleum policy to inform the development of a new Petroleum Act that reflects the emerging issues facing Malawi and best practice and best fit solutions from the region and continent. Broad consultation is needed for this as well as in the development of a model Production Sharing Agreement which the government has already started without acceptable consultation of communities, civil society, traditional leads and citizens.

Members of Parliament were also present and standing is the Chairperson of Parliamentary Committee on Legal and Constitutional Affairs Peter Chakhwantha emphasizing a point

CAPACITY DEVELOPMENT AND ESTABLISHMENT OF LABORATORY FOR MINISTRY OF MINES

It was observed that the country lacks capacity in both petroleum production and mining, it was agreed during the Indaba that government should increase investment in capacity building of young people in the above stated fields. The trained Malawians will assist in negotiation and scrutinizing contracts, analysing samples and conducting research in the geological sector. It is therefore vital for Malawi to have homegrown capacity. In addition, the country should source financing to establish a laboratory that can test samples within the country and to improve knowledge and research in the country and also reduce operating costs in mineral development.

Publicize the Kauniuni reportThe Countrywide Airborne Geophysical Survey branded as Kauniuni covered over

65 percent of the country since its inception in 2013. People in the country are impatient to be informed on the Kauniuni report because the outcomes have taken ages before the nation is informed. The outcomes will not only clear speculations that the public has on the outcomes of the survey but it will provide insight to different stakeholders on the mineral potential of the country. This will allow potential investors both national and international to do a detailed analysis to assess the quality and quantity of the resources depending on their interest.

CONCLUSIONThe Alternative Mining Indaba supports the Government’s vision for effective

mining that will benefit the community and the nation. The Indaba was a contribution to provide insights, thereby helping the Government to improve in the sector. The Alternative Mining Indaba encourages all stakeholders to continue engaging with government to effectively respond to demands made by Malawians. The Government has the major role and responsibility in ensuring that the minerals and oil in Malawi and the extraction of those natural resources benefit the country and its people. The country infrastructural, social and economic developments should be improved through mining.

Following the 2nd Alternative Mining Indaba, the organizing committee and the Natural Resources Justice Network will make appropriate follow up with the Government and all stakeholders to ensure that issues and concerns in these resolutions are addressed